SUPREME COURT BAR ASSOCIATION versus UNION OF INDIA AND ORS.

Citation: [2007] 5 S.C.R. 96 · Decided: 13-04-2007 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Case Allowed

Judgment (excerpt)

A 
SUPREME COURT BAR ASSOCIATION 
v. 
)-
UNION OF INDIA AND ORS. 
APRIL 13, 2007 
B 
[DR.ARIJITPASAYAT AND D. K.JAIN,JJ.] 
Legal Services Authority Act, 1987-Section 6(2)-Retired judge-
Appointment of. as Executive Chairman of State Legal Service Authority--
c Challenge against-Held: For the post of Executive Chairman of State Legal 
Service Authority, normal rule is that the appointment should be of a sitting 
judge-Only in case of difficulties, retired judge may be appointed by way 
of exception since there is ample scope off avouritism in case retired Judge 
is appointed States concerned directed to reconsider the appointment of 
retired judge and do the needful in consultation with the Chief Justice 
D concerned. 
Under section 6(2) of the Legal Services Authorities Act, 1987 serving 
or retired Judge of the High Court can be nominated by the Governor in 
consultation with the Chief Justice of the High Court as the Executive 
E 
Chairman of the State Legal Service Authority. 
The present writ petition was filed on the ground that the appointment 
of a retired Judge as Chairman of the concerned State Legal Service Authority 
in different States fell foul of the desired legislative effect; and it had the 
effect of stalling the effectiveness in functioning of the State Legal Service 
F Authorities. 
Allowing the appeal, the Court 
HELD: 1.1. Several difficulties have been encountered in case a retired 
Judge is appointed as a Chairman. Most of the States and the Union 
G Territories have accepted the genuineness of the problems. Except four States 
i.e. West Bengal, Uttar Pradesh, Uttaranchal and Manipur in other States 
and the Union Territories sitting Judge is functioning as Executive Chairman. 
In the State of Orissa prior to passing of the impugned order dated 12.1.2007 
_,,,_ 
a retired Judge had been appointed as the Executive Chairman. In line with 
the order dated 12.1.2007 presently in the State a retired Judge is functioning 
H 
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SUPREMECOURTBARASSOCIATIONv. U.0.1. 
97 
as the Executive Chairman. There is scope for favouritism in case a retired A 
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Judge is appointed in preference to a sitting Judge. Several instances have 
been highlighted. National Legal Service Authority accepted in its affidavit 
that the functioning of the State Legal Services Authorities where retired 
Judge have been appointed as Chairmen is not satisfactory. 
[Para 2) (99-E, F, G] B 
1.2. Though the allegation of any preferential treatment has been denied 
in the affidavits of all states, the case of State of Orissa is quite disturbing. 
_.,., 
This Court directed production of file relating to appointment of retired Judge 
as Executive Chairman. The Registrar of the Orissa High Court in a 
communication to this Court stated that there was no file available in the High c 
Court and he had collected copies of certain documents from the Principal 
Secretary of the Chief Justice of the High Court. This Court sought 
clarification as to under what circumstances record/file was not maintained 
and as to how the documents were in the possession of the Principal Secretary 
without they being brought on record. The statement of the Principal Secretary 
is very revealing and disturbing. It speaks volumes about the lack of D 
transparency in the matter. The reasons indicated for taking a departure from 
the earlier practice of appointing sitting Judges also reveals some interesting 
factors. Only reason which can be inferred from the letter is that the workload 
has increased and the paucity in the number of Judges. The action of the then 
Chief Justice was not principle-oriented but was person-oriented. Even in the E 
letter addressed to the Government, the then Chief Justice had suggested the 
facilities to be provided to the Judge concerned. This is not required as a part 
of the consultation process. Therefore, there is ample scope offavouritism in 
appointment of a retired Judge. (Paras 6, 7 and 8) (103-B C, D; 105-A, D, E) 
1.3 In some cases earlier a sitting Judge was functioning as the F 
Chairman of the State Legal Service Authority. No reason could be found as 
to why a departure from the long standing practice of appointing a sitting 
Judge as the Chairman of the State Legal Service Authority was departed 
from. [Para 9) (105-E, F) 
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1.4. The stand taken by State of West Bengal in the affidavit that the G 
sitting Judges of the High Court are heavily burdened with judicial work and 
hardly it would be possible for them t

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